NCC FIBRE SUPPLY AGREEMENT BETWEEN CARTER HOLT HARVEY LIMITED AND WHAKATANE MILL LIMITED

Exhibit 10.105

NCC FIBRE SUPPLY AGREEMENT BETWEEN

XXXXXX XXXX XXXXXX LIMITED AND WHAKATANE MILL LIMITED

DATED: May 4, 2010

PARTIES

Xxxxxx Xxxx Xxxxxx Limited trading as Fullcircle (Fullcircle)

Whakatane Mill Limited (WML)

BACKGROUND

A.		Fullcircle has agreed to supply to WML, and WML has agreed to purchase from Fullcircle, New Corrugated Cardboard Clippings (NCC).
B.		This Agreement sets out the terms and conditions of that supply and purchase.

AGREEMENT

This Agreement governs all transactions (oral, written or otherwise) between the parties during the term of this Agreement in relation to its subject matter and overrides any inconsistencies in any terms of trade or purchase orders issued by the parties or the General Terms of Sale attached as Appendix 2 to this Agreement.

The parties agree as follows:

1.		INTERPRETATION
		In this Agreement, unless the context other requires:
		Commencement Date means the date of closing under the asset purchase agreement between Xxxxxx Xxxx Xxxxxx Limited (CHH) and WML dated on or about the date of this Agreement.
		Force Majeure Event means any or all of the following events or occurrences and the effects thereof: act of God or public enemy, flood, earthquake, storm, cyclone, tornado, hurricane, lightning, fire, explosion, epidemic, war, embargo, riot or civil disturbance, strike or other labour dispute, sabotage, expropriation, confiscation or requisitioning of facilities, order or temporary or permanent injunction of any duly constituted court of competent jurisdiction and any other matter or event which is beyond the control of a party (but excluding the payment of money for any reason) and of which that party could not take reasonable measures to prevent or mitigate the effects.
		Pricing Model means the pricing model methodology, as reviewed in accordance with clause 5.2, initially being the per tonne equivalent to the free on truck export equivalent price calculated from the monthly average export price for the previous Quarter converted to NZ dollars using the daily average FX rate from the Reserve Bank of New Zealand for the previous Quarter less transport to wharf costs, as advised from time to time by Fullcircle. An example of the initial Pricing Model is set out in Appendix 3 to demonstrate the operation of the Pricing Model in the calculation of the initial Price.
		Quarter means the three month periods running January to March, April to June, July to September and October to December.

		Specifications means the specifications for the NCC set out in Appendix 1. Term has the meaning given to it in clause 2. Whakatane Mill means WML’s mill at Whakatane.
		A reference to New Zealand dollars, dollars, NZ$ or $ is a reference to the lawful currency of New Zealand.
2.		TERM
		This Agreement will commence on the Commencement Date and will continue thereafter until terminated in accordance with clause 8 or clause 13.
3.		PURCHASE AND SUPPLY OF NCC
3.1.		Exclusive Supply
		WML agrees to purchase all of its requirements for NCC from Fullcircle, and Fullcircle agrees to supply all of WML’s requirements for NCC in accordance with the Specifications and the terms of this Agreement.
3.2.		Non-compliance with Specifications

(a) If Fullcircle supplies NCC to WML which does not comply with the Specifications due to contamination, then:

	(i)		if such non-compliance is detected by WML prior to processing of the NCC, WML shall promptly notify Fullcircle of the issue. Fullcircle shall collect the non-complying NCC and shall meet all reasonable freight costs for any such collection. Fullcircle shall, within 5 days of receiving notice of such rejected Product, supply replacement NCC so as to comply with the volumes specified in the relevant order under clause 4,2;
	(ii)		if such non-compliance is detected by WML during processing of the NCC, WML shall promptly notify Fullcircle of the issue. WML shall retain the non-complying NCC and the parties shall agree a price adjustment for such non-complying NCC.

	(b)		If Fullcircle supplies NCC to WML which does not comply with the Specifications due to moisture levels, WML shall promptly notify Fullcircle of the issue. WML shall retain the non-complying NCC and the parties shall agree a price adjustment based on the percentage of moisture content.
	(c)		If (to the extent that NCC is rejected) Fullcircle is not able to supply WML with replacement NCC within 5 days, then WML may source such NCC from a third party, but only to the extent that the NCC could not be replaced by Fullcircle.

3.3.		On-sales prohibited
		WML must not on-sell any NCC purchased under this Agreement without the prior written consent of Fullcircle.
3.4.		Service levels

	(a)		Specifications: All Products supplied by Fullcircle under this Agreement must meet the Specifications.
	(b)		Quarterly reviews: Both parties agree to formally meet quarterly to review

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			service levels in relation to the Specifications and other operational matters pertaining to this Agreement. Fullcircle will monitor and report on Fullcircle’s performance of its obligations under this Agreement against the Specifications at the quarterly reviews.
	(c)		Failure to meet Specifications: Where Fullcircle does not meet a Specification in accordance with Appendix 1, the parties’ respective nominated representatives will promptly meet to discuss the reasons why the Specification was not met. The representatives must then use their reasonable endeavours to develop and agree within 7 days a plan to rectify the error and identify what can be done by Fullcircle and WML to ensure the Specification is met in the future.

4.		ORDERS
4.1.		Forecasts
		WML will provide Fullcircle an annual month-by-month forecast of its requirements for NCC for each calendar year no later than 30 September of each year of the Term.
4.2.		Orders
		At least six weeks prior to the commencement of each calendar month of the Term, WML must provide to Fullcircle a written binding order for the NCC. Unless otherwise agreed in writing with WML, each written order must be for:

	(a)		not less than 90% of the forecasted volume for the relevant month; and
	(b)		not more than 110% of the forecasted volume for the relevant month.

4.3. Orders In excess of forecasted volumes

	(a)		If WML provides a written binding order for NCC in excess of the forecasted volume for the relevant month, Fullcircle must use its reasonable endeavours to fulfill the order above the forecasted volume, Fullcircle will advise WML as soon as reasonably practicable if it is unable to fulfill any portion of the ordered volume over the forecasted volume.
	(b)		Fullcircle agrees that WML will not be unequally discriminated against in relation to Fullcircle’s other customers, in the allocation of any supply of NCC.

5.		PRICE AND DELIVERY
5.1.		Price
		WML will pay Fullcircle the price, expressed in metric tonnes, (Price) for NCC supplied (as recorded on a certified weighbridge). The initial Price for NCC is $227.18 per tonne (excluding GST) ex Fullcircle store.
		Subject to clause 5.2, during the first month of each Quarter period from the Commencement Date (except the first Quarter period), Fullcircle will review the price of NCC in conjunction with WML and the prices will be adjusted in accordance with the Pricing Model, as reviewed from time to time in accordance with clause 5.2. Once finalised, Fullcircle will provide the new Price to WML prior to the end of the first month of the Quarter period and the new Price will apply retrospectively from the commencement of that Quarter period.
5.2.		Review of Pricing Model

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	(a)		Either party may notify the other at least three months prior to the end of each 12 month period from the Commencement Date that the notifying party requires a review of the Pricing Model, such review to determine whether the existing Pricing Model still reflects the agreed underlying pricing principle, being that the Price for NCC should reflect the price then available to WML in the open market to purchase the volumes provided in this Agreement if this Agreement did not exist (Pricing Principle).
	(b)		Upon receipt of notice under clause 5.2(a), the parties will consult to determine if the Pricing Model still reflects the Pricing Principle. If the parties determine that the Pricing Model no longer reflects the Pricing Principle, the parties will negotiate to determine a new pricing methodology model which does reflect the Pricing Principle. Once agreed, such new pricing model methodology will be deemed to be the Pricing Model.
	(c)		Where a party has given notice under clause 5.2(a), the Price may not be reviewed until such time as the Pricing Model is agreed.

5.3.		Pricing Disputes
		If the parties are unable to agree either the new Price or the Pricing Model within four weeks of the date on which either is reviewed (for whatever reason), the matter will be referred to an independent expert for determination in accordance with clause 5.4 (Independent Expert). The parties will provide the Independent Expert with such information as may be reasonably requested. The Independent Expert must determine the new Price or the Pricing Model, as the case may be, within 14 days following appointment. The determination of the Independent Expert will be final and binding on the parties, save for manifest error, and the new Price or the Pricing Model will apply as follows:

	(a)		in the case of the new Price, the new Price will be backdated to the commencement of the relevant Quarter period; and
	(b)		in the case of the Pricing Model, the new Pricing Model will apply from the commencement of the relevant 12 month period.

		On resolution of any dispute related to Price or Pricing Model, the parties will promptly pay or credit, as appropriate, to account for any backdated changes to the Price or Pricing Model.
5.4.		Appointment of Independent Expert
		The Independent Expert will be appointed in accordance with the following provisions:

(a) the Independent Expert will be appointed by both parties or, where the parties cannot agree within 14 days, appointed by:

	(i)		in relation to disputes regarding pricing, the chairperson of the Auckland branch of the Institute of Chartered Accountants of New Zealand; and
	(ii)		in relation to all other disputes, the President of the New Zealand Law Society;

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	(b)		the Independent Expert will act as an expert and not as an arbitrator and the law relating to arbitration will not apply to the Independent Expert’s determination; and
	(c)		the costs and expenses of the Independent Expert will be shared by the parties equally.

5.5.		Delivery method and time
		Fullcircle will make NCC ordered by WML available for pick up (in accordance with the timing in the Sales and Operating Plan agreed between the parties) at CHH Case’s Auckland site on Mahunga Dr, Mangere, or such other Auckland site as the parties shall agree from time to time. WML will bear its own cost of transporting NCC from the above site to WML’s premises. At WML’s request, Fullcircle will arrange for DDP (Incoterms 2000) delivery of NCC to WML’s warehouse in Whakatane, in which case any freight costs shall be reflected in the relevant invoice to WML’s account.
6.		PAYMENT TERMS
6.1.		Supply on General Terms of Sale
		The General Terms of Sale attached as Appendix 2 will apply to the sale of NCC by Fullcircle. To the extent that there is any inconsistency between the terms of this Agreement and the General Terms of Sale attached as Appendix 2, the terms of this Agreement will apply,
6.2.		Payment by WML
		WML must pay for all NCC ordered and invoiced by Fullcircle no later than the last day of the month following the date of the tax invoice (as defined in the Goods and Services Tax Act 1985).
7.		DISPUTE RESOLUTION PROCESS
7.1.		Procedure
		If any dispute arises between the parties under or in connection with this Agreement (other than a pricing dispute under clause 5.3):

	(a)		the dispute must initially be referred to the parties’ respective nominated representatives who are responsible for the management of this Agreement;
	(b)		the representatives must then use their reasonable endeavours to resolve the dispute; and
	(c)		if the parties’ representatives are unable to resolve the dispute within 30 days of the referral, or such other period as is agreed in writing, the dispute must be referred to the parties’ respective Chief Executives who will use their reasonable endeavours to resolve the dispute within 10 days.

7.2.		No resolution
		If the dispute cannot be resolved by the parties’ respective Chief Executives within the time period specified in clause 7.1(c), either party may require the dispute to be referred to an Independent Expert. The Independent Expert’s decision will be final and binding on the parties, save for manifest error.

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7.3.		Confidentiality
		The parties will hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute as disclosed during or for the purposes of dispute resolution under this clause 7.
8.		TERMINATION
8.1.		Termination without cause
		At any time after 1 January 2014, either party may terminate this Agreement by giving a minimum of six months written notice of termination to the other party.
8.2.		Termination when NCC no longer required
		Notwithstanding anything In clause 8.1, WML may terminate this Agreement by giving at least six months written notice of termination if WML determines in good faith that it no longer requires NCC permanently,
8.3.		Termination with cause
		A party may terminate this Agreement with immediate effect by giving written notice to the other party if:

	(a)		that other party commits a material breach of this Agreement that is not capable of being remedied;
	(b)		that other party commits a material breach of this Agreement that is capable of being remedied, and then fails to remedy the breach within 30 days after receiving notice requiring it to do so;
	(c)		that other party ceases to be able to pay its debts as and when they become due or ceases to carry on business; or
	(d)		any step is taken to appoint a receiver, a receiver and manager, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of that other party’s assets, operations or business, or any action is taken by any person that is analogous to the foregoing.

9.		ASSIGNMENT
9.1.		No assignment without consent
		This Agreement may be assigned by either party subject to approval in writing from the other party. This approval is not to be unreasonably withheld and shall be given if:

	(a)		the party requesting approval (Requesting Party) proves to the reasonable satisfaction of the other party that the proposed assignee is respectable, responsible and has the financial resources to meet the Requesting Party’s obligations under this Agreement; and
	(b)		all amounts due and payable by the Requesting Party under this Agreement have been paid and there is not any subsisting material breach of the Requesting Party’s obligations under this Agreement.

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9.2.		Assignment to Related Entities
		Notwithstanding clause 9.1 and clause 9.3, either party may assign or otherwise transfer without the approval of the other party any right or obligation arising out of this Agreement to any entity who is (directiy or indirectly) owned or controlled by Mr. Graeme Xxxxxxx Xxxx.
9.3.		Change In Control
		A change in control of either party will be deemed to be an assignment for the purposes of this clause 9. For the purposes of this Agreement, change in control means:

	(a)		where a party ceases to be controlled directly or indirectly by Mr. Graeme Xxxxxxx Xxxx;
	(b)		where there is a change in direct or indirect control of a party (but, for the avoidance of doubt, if a party is controlled directly or indirectly by Mr Graeme Xxxxxxx Xxxx, there will not be a change in control of that party arising from any transfer or other transaction if, following that transfer or transaction, that party continues to be controlled directly or indirectly by Mr. Graeme Xxxxxxx Xxxx);
	(c)		a sale of the majority of the assets comprising the Whakatane Mill to a third party who is not controlled directly or indirectly by Mr. Graeme Xxxxxxx Xxxx; or
	(d)		a sale of the majority of the assets comprising the CHH division known as Fullcircle to a third party who is not controlled directly or indirectly by Mr. Graeme Xxxxxxx Xxxx.

9.4.		Obligation to assign
		Subject always to clause 9.1, WML must assign or novate this Agreement to a third party purchaser of the majority of the assets comprising the Whakatane Mill.
10.		LIMITATION OF LIABILITY
10.1.		Limited liability per claim
		Subject to clauses 10.2, and 10.3, the liability of either party under this Agreement shall be limited to the aggregate of:

	(a)		the value of the actual NCC to which the claim relates; and
	(b)		$10,000,

		per claim or series of related claims.
10.2.		Liability tor gross negligence, wllful act or omission
		The liability of either party where, and to the extent that, the losses or damages of the other party are caused by the liable party’s gross negligence or wllful act or wllful omission shall not be subject to the limitations in clauses 10.1 and 10.4.

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10.3.		Limited aggregate liability
		Other than in respect of WML’s obligation to pay the Price for all NCC ordered and invoiced, the liability of either party under this Agreement shall be limited in any 12 month period commencing as from the Commencement Date to $100,000.
10.4.		Exclusion of liability
		Subject to clause 10.2, each party shall not in any circumstances be liable to the other party for any loss of profits or indirect or other consequential loss or damage (including any loss of: business income; profits; revenue; customers; penalties; fines; damages for personal injury; use of an asset; production; contract; goodwill; or loss or corruption of data and additional finance or interest costs) in relation to this Agreement.
11.		NOTICES
11.1.		Particulars for notices
		The particulars for delivery of notices are initially:

(a) Xxxxxx Xxxx Xxxxxx Limited

Address: Physical Address
Kinleith Site
State Highway 1
Kinleith
Tokoroa 3491
Xxxxxx Xxxxxxx
Xxxxxxx Xxx 0
Xxxxxxx 0000

	Xxxxxxxxx:		Xxxxx Xxxxxxx
	Telephone:		00 000 0000
	Facsimile:		07 886 3614
	Email:		Xxxxx.Xxxxxxx@xxx.xx.xx

Copy to each of the persons named below:

Xxxxxx Xxxx Xxxxxx Limited

Address: 000 Xxxxxxx Xxxxxxx Xxxx
Xx Xxxxxx
Private Bag 92-106
Xxxxxxxx 0000

	Attention:		Business Legal Counsel — Pulp, Paper and Packaging
	Facsimile:		09 633 0601

Rank Group Limited

Address: Xxxxx Xxxx
000 Xxxx Xxxxxx
PO Box 3515
Auckland

	Attention:		Xxxx Xxxx
	Facsimile:		09 366 6263
	Email:		Xxxx.Xxxx@xxxxxxxxx.xx.xx

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	Rank Group Limited
	Address:		Xxxxx Xxxx 000 Xxxx Xxxxxx PO Box 3515 Auckland
	Attention:		Xxxxx Xxxxxxx
	Facsimile:		09 366 6263
	Email:		Xxxxx.Xxxxxxx@xxxxxxxxx.xx.xx

(b) Whakatane Mill Limited

	Address:		Mill Road Whakatane
	Attention:		Xxxxxx Xxxxxx
	Telephone:		00 000 0000
	Facsimile:		07 306 3655
	Email:		Xxxxxx.Xxxxx@xxx.xx,nz

Copy to each of the persons named below;

SIG Group

	Address:		Xxxxxxxxxxx 00 XX-0000 Xxxxxxxxx xx Xxxxxxxxx Xxxxxxxxxxx
	Attention:		Xxxxx Xxxxxxxxx
	Facsimile:		0041 52 674 7200
	Email:		Xxxxx.Xxxxxxxxx@xxx.xxx

SIG Group

	Address:		Xxxxxxxxxxx 00 XX-0000 Xxxxxxxxx xx Xxxxxxxxx Xxxxxxxxxxx
	Attention:		Xxxxxx Xxxxxxxxxxx
	Facsimile:		0041 52 674 6556
	Email:		Xxxxxx.Xxxxxxxxxxx@xxx.xxx

11.2. Delivery

Any notice, demand, consent or other communication given or made under this Agreement (Notice) must be:

	(a)		left at the address (or addresses) set out or referred to in clause 11.1;
	(b)		sent by prepaid ordinary post (airmail if appropriate) to the address (or addresses) set out or referred to in clause 11.1;
	(c)		sent by fax to the fax number set out or referred to in clause 11.1; or
	(d)		sent by email to the email address set out or referred to in clause 11.1; or
	(e)		given in any other way permitted by law.

However, if the intended recipient has notified a changed postal address, physical address, fax number or email address, then the communication must be to that address or number.

11.3.		When effective
		A Notice takes effect from the time it is received unless a later time is specified.
11.4.		Receipt — post
		If sent by post, a Notice is taken to be received three days after posting (or

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seven days after posting if sent to or from a place outside New Zealand).

11.5.		Receipt-fax
		If sent by fax, a Notice is taken to be received at the time shown in the transmission report as the time that the whole fax was sent.
11.6.		Receipt — email
		If sent by email, a Notice is taken to be received at the time shown in the sent email as the time that the email was sent.
11.7.		After hours communications
		If a Notice is given:

	(a)		after 5.00 pm in the place of receipt;
	(b)		on a day which is a Saturday, Sunday or bank or public holiday in the place of receipt; or
	(c)		on a day starting from and including 24 December to 3 January,

it is taken as having been given at 9.00 am on the next day which is not a Saturday, Sunday or bank or public holiday in that place.

12.		CONFIDENTIALITY
		Except as required by law or by the rules of any applicable stock exchange, each party agrees to keep the terms of this Agreement and any information supplied directly or indirectly by the other party (which is not public information) confidential, provided that each party is permitted to make such disclosures to its employees, agents, advisers or subcontractors as is necessary to enable that party to perform its obligations under this Agreement.
13.		FORCE MAJUERE
		Neither party will be liable for any failure to perform its obligations under this Agreement where such failure Is due to a Force Majeure Event, provided that the affected party:

	(a)		promptly notifies the other party of the cause arising;
	(b)		uses its reasonable endeavours to overcome or work around such cause and to minimise its effects; and
	(c)		uses its reasonable endeavours to resume performance of the obligation frustrated by such cause as soon as such cause has abated.

		Either party may terminate this Agreement in whole or in part to the extent the other party’s performance of its obligations under this Agreement is materially affected by a Force Majeure Event lasting more than 20 days.
		If Fullcircle is unable to supply any NCC due to a Force Majeure Event, then WML may purchase or source the relevant NCC from a third party while the Force Majeure Event continues.
14.		GOVERNING LAW
		This Agreement will be governed by and construed in accordance with the laws of New Zealand. Each party irrevocably and unconditionally submits to the

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exclusive jurisdiction of the courts of New Zealand.

15.		COSTS
		Subject to any express provision in this document to the contrary, each party shall bear its own legal and other costs and expenses relating directly or indirectly to the preparation of, and performance of its obligations under, this Agreement.
16.		AMENDMENT
		This Agreement may only be varied or replaced by an instrument in writing duly executed by the parties.
17.		COUNTERPARTS
		This Agreement may consist of a number of counterparts and if so the counterparts taken together constitute one and the same instrument.
18.		JOINT AND SEVERAL LIABILITY
		An obligation under this Agreement of two or more persons binds them jointly and severally.
19.		ENTIRE AGREEMENT
		This Agreement and the documents specifically referred to in it constitute the entire understanding and agreement between WML and Fullcircle with respect to the supply and purchase of NCC, and supersedes all negotiations, prior discussions, and preliminary agreements, between the parties.
20.		INVALIDITY
		if any provision of this Agreement is held to be illegal, invalid or unenforceable, such provision will be deleted from the document, and the parties shall in good faith negotiate to replace the provision with a new provision which being legal, valid and enforceable, comes closest to the meaning of the original provision, and the remainder of this Agreement will not be affected.
21.		FURTHER ASSURANCES
		Each party shall promptly execute all documents and do all things that any other party from time to time reasonably requires of it to effect, perfect or complete the provisions of this Agreement and any transaction contemplated by it.

Executed as an agreement.

Executed by Xxxxxx Xxxx Xxxxxx Limited trading as Fullcircle		) )
/s/ Xxxxxx Xxxxxx
Authorised Signatory
Xxxxxx Xxxxxx
Print name

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Executed by Whakatane MIII Limited		) )
/s/ Xxxxxx Xxxxxx
Authorised Signatory
Xxxxxx Xxxxxx
Print name

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APPENDIX 1

Specifications

The following specifications are to be used to determine the suitability of paper material for recycling by WML. If doubt exists as to the suitability of a particular type of Recyclable Material, a sample should be forwarded to WML for testing.

PROHIBITIVE MATERIALS

The “prohibitive materials” to be excluded from NCC include but are not limited to:

Carbon Paper		Waxed Cartons		Plastics
Wet Strength Paper		Bitumen Paper		Metals
Moisture Barrier Paper		Carbon Paper		Wood
Plastic Laminates		Foil Laminates		Glass
Plastic Foam		Waxed Paper		Rubber
Polystyrene		Bitumen Tape		General Garbage
Non wood fibre substances		Oozing oils and inks

OUT THROWS

The term “Out throws” is defined as “all papers that are so manufactured or treated or are in such a form as to be unsuitable for consumption as the grade specified.”

MOISTURE CONTENT

Moisture content is not to exceed 12% by weight.

GRADE:		NEW CORRUGATED CARDBOARD CLIPPINGS (NCC)
DESCRIPTION:		New corrugated cuttings having liners of either test liner, jute or kraft. Treated medium or liners, insoluble adhesives, butt rolls, slabbed or hogged medium, are not acceptable in this grade

Prohibitive materials may not exceed			0	%
Total Out throws may not exceed			2	%

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APPENDIX 2

General Terms of Sale

1.		PRICE AND ORDERS
1.1		The Buyer will place Orders with the Seller in accordance with the Seller’s processes as advised to the Buyer from time to time.
1.2		The Buyer will pay to the Seller the Price for the Goods in accordance with clause 2.
1.3		The Price will be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes or duties are expressly included in the Price.
1.4		There is no obligation on the Seller to enquire as to the authority of any person placing an Order on behalf of the Buyer.
2.		PAYMENT
2.1		Payment of the Price is to be made by such method as the Seller nominates from time to time and is due by the last day of the month following the date of Delivery, provided that the Buyer has received an invoice by the 5th of that month for those purchases made in the previous calendar month.
2.2		The Buyer may not withhold payment or make any set-off or deduction from any Amount Owing without the Seller’s prior written consent.
2.3		The Seller must apply payments received in reduction of the oldest Amount Owing first.
3.		DELIVERY
3.1		Where the Goods are to be supplied “Free into the Buyer’s Store”, the Seller will deliver, or arrange delivery of, the Goods to the agreed destination on the delivery date advised to the Buyer and pay any storage, transportation and insurance costs incurred as a result up to the time of delivery. Delivery will be deemed to have been made when the Goods arrive at the agreed delivery point.
3.2		The Seller must use reasonable endeavours to supply Goods to the Buyer in accordance with required delivery dates and must notify the Buyer promptly if it is unable to do so.
3.3		In all circumstances whatever the agreed method of delivery, the Buyer will be responsible at its own cost for unloading the Goods, or for arranging for a suitable means of unloading the Goods, from the relevant delivery vehicle. The Buyer shall also be responsible for all subsequent movements of the Goods and will pay all expenses and accept all risks in relation to the Goods from the time that they are available for unloading, including without limitation, storage charges.
3.4		The Seller may deliver the Goods by instalments. Each instalment will be treated as a separate contract under these Terms.
4.		TITLE, RISK AND SECURITY
4.1		Risk of any loss, damage or deterioration of or to the Goods passes to the Buyer on Delivery.

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4.2		Ownership of the Goods remains with the Seller and does not pass to the Buyer until the Buyer pays in full the Amount Owing in respect of those specific Goods.
4.3		While Ownership of the Goods remains with the Seller, the Seller authorises the Buyer in the ordinary course of its business to use the Goods including further manufacturing them and combining them with other raw materials to form new products and to sell the Goods and any other goods with which they are combined for full consideration.
4.4		The authority referred to in clause 4.3 is revoked automatically from the time an Event of Default occurs including without limitation if an administrator is appointed to the Buyer.
4.5		Where the authority conferred by clause 4.3 is revoked under clause 4.4:

	•		the Buyer authorises the Seller to use reasonable force to enter the premises where the Goods are stored and remove them;
	•		the Seller shall exercise reasonable care in entering such premises and removing such Goods, but shall not be liable for trespass or any damage caused by the use of reasonable force;
	•		the Buyer is released from the obligation to pay the Price for all Goods repossessed by the Seller except to the extent any proceeds obtained by the Seller reselling the Goods (less all costs incurred) are less than the Price owing by the Buyer to the Seller for those same Goods;
	•		the Seller may resell any repossessed Goods and apply the proceeds of sale in reduction of the Amount Owing as the Seller thinks fit; and
	•		the Buyer is liable for all costs associated with the exercise by the Seller of its rights under this clause 4.5 and costs are payable to the Seller on demand.

4.6		Where an Event of Default occurs and is continuing, the Seller may bring an action for the Amount Owing in respect of the Goods even where Ownership of the Goods has not passed to the Buyer.
4.7		Until Ownership of the Goods passes to the Buyer under these Terms, the Buyer must:

	•		keep proper stock records and records of account with respect to the purchase, receipt, sale of, and other dealings with, the Goods; and
	•		make those records and/or the Goods themselves available to the Seller for inspection (and, in the case of the records, copy them) at the Seller’s reasonable request.

4.8 In consideration for the supply terms set out in these Terms:

	•		the Buyer acknowledges that the Seller has a security interest under the PPSA in all the Goods supplied by the Seller under these Terms as security for payment of the Amount Owing (including, for the purposes of sections 71 and 72 of the PPSA, further advances) in respect of the Goods, and that the Seller may register a financing statement to perfect its security interest in the Goods;
	•		the Buyer acknowledges that it has received value from the Seller as at the date of first delivery of the Goods and has not agreed to postpone the time for attachment of the security interest granted to the Seller under these Terms nor to subordinate such security interest in favour of any person;

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	•		these Terms and each security interest created under these Terms is a continuing security, notwithstanding intermediate payments or anything else, and is in addition to, and not to be merged in, any other security agreement, guarantee or other agreement (present or future) expressed or intended to be security for any amounts owing to the Seller in respect of Goods;
	•		no security interest created under these Terms is discharged, nor are the Buyer’s obligations affected by any amendment to, or the validity or enforceability of, or failure to enforce, these Terms, the insolvency, liquidation, administration, amalgamation, change in status or reorganisation of the Buyer, or anything else whatever that, but for this clause, may have discharged these Terms or affected the Buyer’s obligations under these Terms, and the Seller is not liable to the Buyer in relation to any of these matters, even though the Buyer’s rights in subrogation or otherwise may be prejudiced as a result;
	•		the Buyer will, at its own cost, promptly provide all reasonable information and do all reasonable things that the Seller may require to ensure that the Seller has perfected security interests in respect of the Goods under the PPSA or otherwise to secure to the Seller the full benefit of its intended rights under these Terms (including (without limitation, promptly notifying the
	•		in the course of a process of production or manufacture, the Buyer will: Seller of any change in the Buyer’s name, address or contact details).

4.9 To the extent that Part 9 of the PPSA applies to these Terms and to the extent permitted by law, the Buyer waives its rights set out in Part 9 of the PPSA (including, without limitation, its rights to receive any verification statement or financing change statement) and, where the Seller has rights in addition to those in Part 9 of the PPSA, those rights continue to apply.

4.10 If the Buyer acquires the Goods for the purposes of resupplying them in trade or consuming them

	•		include in its conditions of sale a clause to the effect that the Consumer Guarantees Act 1993 (CG Act) will not apply where a customer of the Buyer acquires or holds itself out as acquiring the Goods for a business purpose;
	•		notify its customers of the effect of the first bullet point of clause 4.10;
	•		indemnify the Seller against all losses, costs, damages or liabilities which the Seller may incur or be liable to pay arising out of the Buyer’s failure to take the action required under this clause 4.10;
	•		immediately notify the Seller in writing of any claim or demand that the Buyer might receive in respect of the Goods, and give the Seller all details of the claim or demand; and
	•		not represent to any of its customers that it is acting for, or has any authority to bind, the Seller.

5.		WARRANTIES AND LIABILITY
5.1		In the event of any Claim under these Terms, at the Seller’s discretion Goods may be repaired or replaced or the Price refunded. No Claim may be made against the Seller for loss of profits, consequential or indirect damages or special loss.
5.2		All warranties, descriptions, representations, terms and conditions (other than these Terms) whether implied by law, trade, custom or otherwise are, and all

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		other liability of the Seller, whether in tort (including negligence), contract or otherwise is, expressly excluded to the fullest extent permitted by law.
5.3		In respect of any Goods supplied to a Buyer registered in New Zealand:

	•		Goods are acquired by the Buyer for business purposes and the CG Act does not apply; and
	•		nothing in these terms is intended to have the effect of contracting out of the provisions of the CG Act except to the extent permitted under that Act.

5.4 Where the Seller is advised by any third party (including the Buyer), or forms a view itself, that there could be a manufacturing defect in relation to the Goods (or any particular batch of Goods), the Seller agrees to:

	•		promptly notify the Buyer on a confidential basis, of the nature of the issue and the process the Seller proposes to deal with that particular issue:
	•		put in place systems for the collection, and, where appropriate, replacement, of affected raw Goods from the Buyer and its immediate and ultimate customers, as soon as practicable; and
	•		arrange and meet all reasonable freight and distribution costs associated with any such collection and/or exchange of affected Goods from the Buyer and/or customer sites. (Where payment has already been made for the Good being exchanged, any supply of replacement Goods shall be made free of charge.)

6.		DEFAULT
6.1		If any Event of Default occurs in respect of a party:

	•		any Amount Owing will immediately become due and payable notwithstanding that the due date has not arisen; and/or
	•		where the defaulting party is the Buyer, to the extent permitted by law, each security interest created by these Terms will become immediately enforceable and, the Buyer must return the Goods to the Seller promptly on request or the Seller may take possession of and sell the Goods and the Seller has all the rights of a natural person in relation to the Goods and all other rights conferred by law (including under Part 9 of the PPSA) in relation to the Goods.

6.2		The non-defaulting party is “entitled to recover from the defaulting party all costs that the non-defaulting party incurs in connection with the exercise, protection or enforcement of the non-defaulting party’s rights under these Terms or conferred by law, in each case on demand and on a full indemnity basis.
7.		USE OF INFORMATION
7.1		The Buyer agrees that the Seller may obtain information about the Buyer from the Buyer or any other person (including any Person related to the Seller and including any company within the wider group of companies of which the Seller forms part (the Wider Seller Group) and any credit or debt collection agencies) in the course of the Seller’s business, including credit assessment, debt collection and direct marketing activities, and the Buyer consents to any person providing the Seller with such information.
7.2		The Buyer agrees that the Seller may use any information it has about the Buyer relating to the Buyer’s creditworthiness and, subject to any confidentiality agreement between the Buyer and the Seller, give that information to any other

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person, including any credit or debt collection agency and other members of the Wider Seller Group for credit assessment and or, debt collection purposes. Under the Privacy Xxx 0000 (NZ), the Buyer has rights of access to, and correction of, their personal information.

8.		WAIVER
8.1		If the Seller exercises or fails to exercise or delays exercising any right or remedy available to it, such exercise, failure or delay will not prejudice the Seller’s rights in exercising that or any other right or remedy unless expressly specified in writing and signed by the Seller.
9.		ELECTRONIC MESSAGES
9.1		The Buyer agrees that the Seller may send electronic messages relating to its business, including promotional messages in respect of goods and services offered by the Seller, to the Buyer from time to time to the email addresses provided by the Buyer. If the Buyer no longer wishes to receive such messages it may notify the Seller in which event no promotional messages will be sent by the Seller by electronic means to the Buyer.
10.		GOVERNING LAW
10.1		These Terms will be governed by and construed in accordance with the laws of New Zealand. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New Zealand.
11.		WORDS USED IN THESE TERMS
11.1		“Amount Owing” means, at any time, all amounts owing by the Buyer to the Seller under these Terms, or if the context expressly provides in respect of specific Goods.
11.2		“Claim” includes any claim:

	•		for any loss, damage or injury of any kind, excluding consequential or indirect loss or damage, suffered by any person arising directly or indirectly from:
	•		any breach of the Seller’s obligations under these Terms; or
	•		any cancellation of these Terms; or
	•		any negligence, misrepresentation or other act or omission by the Seller or its employees, agents or contractors; or
	•		for any other compensation, demand, remedy, liability or action.

11.3		“Delivery” means delivery of the Goods as determined pursuant to clause 3 of these Terms.
11.4		“Event of Default” in relation to a defaulting party means an event where:

	•		that party fails to comply with these Terms; or
	•		that party commits an act of bankruptcy; or
	•		that party enters into any compromise or arrangement with its creditors; or
	•		if that party is a company:

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	•		that party does anything which would make it liable to be put into liquidation; or
	•		a resolution is passed or an application is made for the liquidation of that party; or
	•		a receiver or statutory or official manager is appointed over all or any of that party’s assets; or
	•		that party, its board, or shareholders is considering appointing an administrator or liquidator; or
	•		an administrator is appointed to that party;
	•		anything analogous, or having similar effect, to any of the other events above arises.

11.5 “Goods” means all goods and associated services supplied to the Buyer by the Seller now and at any time in the future pursuant to any agreement between the Buyer and the Seller which incorporates these Terms, together with ail accessories and replacements that are at any time supplied or attached to the Goods and all of the Buyer’s present and future right, title and interest (legal and equitable) in all documents of title relating to the Goods, and for the purposes of the PPSA all debtors and proceeds arising from the sale of the Goods.

11.6		“Order” means an order placed by the Buyer with the Seller for the purchase of Goods.
11.7		“Ownership” means the property in and legal and beneficial ownership of the Goods.
11.8		“Person” includes a corporation, association, firm, company, partnership or individual.
11.9		“PPSA” means the Personal Property Securities Xxx 0000. Terms defined in the PPSA will have the same meanings where used in these Terms unless the context otherwise requires.
11.10		“Price” means the purchase price of the Goods as most recently specified by the Seller to the Buyer in writing or otherwise (or, if no such price has been specified, the Seller’s then-current market price for the Goods) and any taxes or duties payable under clause 1.3 and any other costs payable by the Buyer under these Terms (including, without limitation, costs relating to transportation, storage and insurance).
11.11		“Terms” means these terms of sale and, as the context requires, each contract entered into between the Buyer and the Seller for the supply of Goods and each invoice issued by the Seller to the Buyer for Goods into which these terms of sale are incorporated.
11.12		References to legislation include as amended, re-enacted or substituted and any statutory instruments, regulations and orders issued under such legislation.
11.13		Whenever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”.

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APPENDIX 3

Example of operation of Pricing Model

Price example (Price for second Quarter 2010)

The weighted average export price for NCC (calculated by using the monthly weighted average of the export price of OCC and adding USD20) for all Fullcircle export transactions over the previous Quarter = USD168.21 per tonne

The daily average FX rate from the Reserve Bank of New Zealand for the previous Quarter = 0.7092

The weighted average export price for NCC for all Fullcircle export transactions over the previous Quarter in NZD = NZD237.18 per tonne

Less transport to wharf costs = -NZD10.00 per tonne

Price for second Quarter 2010 = NZD227.18 per tonne ex Fullcircle store

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